"Every Organ of Society" : Exploring the Role of Social Institutions in the Effective Implementation of International Human Rights Law

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"Every Organ of Society" : Exploring the Role of Social Institutions in the Effective Implementation of International Human Rights Law

Fraser, J.A.

(2018) Utrecht University Repository

(Dissertation)

Supervisor(s): Zwart, Tom; Donders, Yvonne

Abstract

While human rights apply universally and have been articulated as binding law in numerous international treaties, rights continue to be poorly implemented and violated around the world, revealing a gap between law and practice. The challenge of implementation – making legal norms a lived reality - is now most pressing. ... read more A contributing factor to the poor implementation and violation of rights is their ongoing contestation, such as that presented by the cultural relativist and postcolonial critiques, which are as old as the Universal Declaration of Human Rights itself. Numerous scholars have addressed these critiques, with some proposing ways to reconcile human rights with diverse cultures. This dissertation analyses such culturally sensitive approaches to human rights, which advocate the inclusion of local cultural norms and actors – social institutions - in domestic implementation. The purpose of such approaches is not only to promote the effective implementation of rights (based on the local legitimacy of social insitutions), but also to duly respect cultural diversity. Therefore, the dissertation advocates culturally sensitive approaches to human rights implementation on the basis of principle as well as pragmatism. The dissertation argues that such approaches are permitted by international human rights law, which grants States broad discretion in how to realise rights domestically. Despite this permissiveness, legislation is the primary implementation measure emphasised by the UN treaties, treaty bodies, and literature. This preoccupation with the law has given rise to a critique of legalism in human rights, emphasising the limitations of the law and that other disciplines provide important insights to human rights in context. Another aspect of legalism is that it necessarily focuses on the State and diminishes the role of non-State actors in implementation. While the State model is common in the West, it is less entrenched elsewhere, particularly in the global South where other actors and normative systems (social institutions) exist that should be taken into account. These social institutions can be crucial in effective human rights implementation. Given the implementation gaps, violation of rights around the world, and the limitations of legislation and the State to fully protect rights, this dissertation advocates a greater role for social institutions. Through a qualitative, multi-disciplinary case study, the dissertation explores these issues in context, examining the role of Islamic law and institutions (social institutions) in implementing women’s right to family planning in Indonesia. In this case, the work of Islamic actors complemented that of State authorities, with Muslim women using their agency to shape religious norms and practices in line with the right to family planning. The research showed that Islamic law and institutions are central to reproductive health in Indonesia and are too empirically important to be disregarded. Despite this, they are virtually absent in the UN treaty bodies’ Concluding Observations to Indonesia, which continue to focus on the State and on legislation. Based on this analysis, the dissertation advocates further consideration by the UN treaty bodies and States parties of rights implementation beyond the possibilities offered by formal State institutions and to include also social institutions. show less

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